The Court of Cassation, in its judgement 21628/2019, stated that extending the lunch break beyond the time allowed and not having completed the work is more serious than absence from work.
The facts
A postman was fired for “having been remained on two occasions with others well beyond the anticipated lunch period, while leaving the mail assigned to him and the vehicle provided unattended. All without having completed his work for not having delivered two packages“.
The Court of Appeals with territorial jurisdiction upheld the decision of the first instance, stating, among other things, that “the conduct is carried out with clear awareness in the violation of the company rules inferable from the manner in which it is carried out“.
The worker appealed against the decision on two grounds in Cassation, to which the company appealed with counter-claim.
The decision of the Court of Cassation
The worker, among other things, argued that the charge against him was one of the cases for which the sectoral national collective bargaining agreement provided for a conservative penalty. Consequently, the court could not impose a more serious penalty than that indicated by the social parties.
This reason was considered unfounded by the Court of Cassation in light of the principles it had recently expressed (see Cassation no. 12365 of 2019, Cassation conf. no. 14064, 14247, 14248, 14500 of 2019). In particular, only where the disputed and ascertained fact is expressly contemplated by a provision of a source of negotiation binding on the employer, which typifies the conduct of the worker as punishable by conservative sanction, the dismissal can be declared illegitimate and, therefore, also worthy of the reintegration protection provided for in amended Art. 18 paragraph 4.
According to the Court of Cassation, in the present case, contrary to what the worker claims, the Court of Appeals held that the conduct complained of was more serious because: “it was carried out with other employees and was noticed by the community to the point that there was also a complaint against the malfunctioning of the service by the inhabitants of the area concerned from which the investigations arose; during the time spent at lunch after the break granted, the employee could well have completed the research needed to deliver the packages which had remained unprocessed; P., who normally spent time at the restaurant, had left the company vehicle completely unattended during those times”.
These facts, in the opinion of the Court of Cassation, appreciated by the Territorial Court and unquestionable in terms of legitimacy, “are certainly suitable for excluding the continuation of the charges as ascertained by the court of merit to the more general provision of habitual negligence or habitual non-compliance with service obligations punishable by a conservative sanction by the collective bargaining.
In the opinion of the Court of Cassation, the assumption of the Court of Appeal according to which: “the unjustified absence from work of an employee is in fact less serious than the conduct of a person who, despite being regularly on duty, chooses to spend time with others beyond the permitted time, without having fully performed the tasks entrusted to him and inherent in his duties.
According to the Court of Cassation, in this case there is a serious breach of the contractual obligations incumbent on the employee, who shows a particularly strong intentional element.
In view of all the above, the Court of Cassation rejected the employee’s appeal, confirmed the legitimacy of the dismissal ordered against him and settled the costs according to the principle to be borne by the losing party.
